Exam Notes

Problem Solving Approach

  • Discussing elements in an abstract way initially.
  • Purpose: To indicate correct approach for problem-solving.
  • Core subjects have problem-solving exams.

Assessments

  • Some assessments are policy-based essays.
  • Time pressure requires efficient information delivery.
  • Extra words slow down the display of knowledge.
  • Mistakes occur when students misunderstand principles.

Sources of Law

  • Identify where elements of an offense derive from such as Common law offences.
  • Elements created by judges over time as in "piecemeal fashion".
  • Statutory assaults that may cite common assault which potentially conflates two different lenses.
  • Cite cases applying the specific common law offense.
  • Exceptions exist as guided by workshops.

Statutory Offenses

  • Explain elements and cite the relevant section that creates the offense.
  • Example: Section 16 for intentionally causing serious injury.
  • Refer to sections providing definitions that apply to the facts (e.g., serious injury in Section 15).
  • Rely on definitions within the act and case law interpreting elements.
  • Cite cases like Westerway for authority on intention to cause serious injury.

Universal Elements

  • Cite authority considering universal elements when applying any offense.
  • "Voluntariness" cases, often from murder, can be used for any offense needing voluntariness.
  • Causation cases are relevant to all result-based offenses where causation is an issue.

General Rule

  • Cite cases dealing with the specific offense being considered.
  • Understanding exceptions is crucial.
  • Using wrong authority can lead to stating wrong principles.

Elements of Crime

  • Common law presumes criminal offenses require a guilty mind (mens rea).
  • Courts may impose a mens rea requirement even if a statute doesn't explicitly include it.
  • Simple, public policy offenses may not have mens rea (e.g., speeding).
  • Guilt requires satisfying all necessary elements: actus reus and mens rea.
  • Actus reus and mens rea must overlap in time (contemporaneity or concurrency).

Structure and Approach to Problem Solving

  • Identify the relevant act or omission.
  • Identify potential offenses.
  • Apply actus reus, then mens rea.
  • Explain contemporaneity.
  • Consider defenses and burdens of proof.
  • Avoid separating legal elements from their application to facts.
  • State principle, then apply it to the facts immediately.

Actus Reus

  • Physical elements of a crime.
  • Law imposes culpability for what you have done.
  • Differentiate between acts and omissions.
  • Some offenses can only be committed by an act (e.g., assault).

Omission

  • Failure to act when there is a legal duty to do something.
  • Analysis needs to identify duty of care, what it required, breach of such duty which was negligent and a breach occurred.
  • Focus on a specific act or a specific omission.

Single Act

  • Starting point: identify a single act and apply analysis to it.
  • Exceptions: argue a series of acts or a continuing act.

Multiple Offences

  • One act can give rise to multiple offenses.
  • Start with the most serious offense and work down if issues arise.
  • In a scenario with multiple acts, consider each separately.

Terminology

  • "Conduct" refers to both acts and omissions.
  • Be specific: use "act", "omission", or "acts and omissions" as appropriate.

Voluntariness

  • Act must be willed by the accused's conscious mind.
  • Omission must not be independent of the accused's will.

Causation

  • Not all offenses have causation as an element.
  • For result-based offenses, causation is critical.
  • Causation = application of force in the body of the victim.

Components of Causation

  • Factual causation and legal causation are the 2 components to consider.
  • Factual causation requires a causal connection using the "but for" test.
  • Legal causation requires the act to be a substantial and operating cause of the result.
  • Legal causation can be satisfied even with contributing factors.

Legal Causation - Intervening Events

  • Legal causation is about culpability.
  • Contention arises if another event contributed to the outcome.
  • Accused may argue another event was the direct and substantial cause.
  • Did the chain of legal causation broken?
  • "Act of God" may break chain of causation, where event is extraordinary, as distinct to operation of natural forces.

Traits of the Victim

  • Physical or mental traits of the victim will not break the chain of causation.
  • Eggshell skull principle: take your victim as you find them.
  • Victim's decision not to get medical treatment (e.g., blood transfusion) may not break causation.

Application of Legal Causation

  • Complex when intervening events need consideration.

Intent

  • Introspectiveness. Intention and foresight of an audience for a purpose. Not objective.
  • Facts must demonstrate the accused's actual subjective thoughts.
  • Avoid objective "reasonable person" language.

Mens Rea

  • For result-based offenses, expressed by reference to the result (e.g., intent to cause serious injury).
  • Offenses may have intent or recklessness as an alternative.
  • Recklessness requires foreseeing a probable consequence.
  • It is not enough to say that the person intended the incident. They need to have known it would lead to the outcome.

Negligence

  • Breach of duty of care involving a high risk of serious injury that justifies criminal punishment. Higher threshold than civil court.
  • Intent or recklessness are not required.

Contemporaneity

  • Actus reus and mens rea must overlap in time.
  • Mens rea doesn't need to be present when the act begins, only before it ends.
  • Can argue a "continuing act" (Fagan case) or a series of acts giving effect to a preconceived plan (Thabo-Meli case).